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One can understand the Pre-legislative Process to be an
opportunity for people to re-engage with matters of governance and functions of
the State in general. This is a welcome change from many of the more recent
agendas of “good governance reforms” that absolve the State from its core
duties of implementation by relying on private sector expertise to replace
inefficient public sector functionalities

It is popular, both in current casual and serious discourse, to
talk of a trust deficit in the interaction between the people and the state.
The nature of a relationship between an institution called the State and its
citizens can only be in the nature of a social contract. This definition and
expectation of trust, is an act of faith and takes away from the equal, causal
and rational relationship that democracy seeks to establish through its
systems. If we look at some of the essential requisite of democratic
institutional structures; to send representatives to panchayat, assembly and parliament, there is
implicit in the election process an obligation for representatives to be
accountable for their actions. We transfer our sovereignty under contract and
constitutional obligation to perform in accordance with the promises made to
us. The act of faith and trust seems a misplaced concept in the relationship
between the citizen and the State. One quarrels even with Gandhiji’s dream of a
just relationship emerging through ‘trusteeship’. It is not possible in
any, but in an Utopian society. In the Indian political context of democracy
and governance, skewed by caste, class, gender and religious prejudices, with
layers of identities and divides, a concept such as trust would do well to be
left alone - to individual and intimate relationships.

It is this growing recognition which led people to a serious
assessment of the way governments function, and the nature of power
relationships, influenced by feudal social norms, colonial administrative
patterns and the emerging pattern of neo socio-political-economic vested
interests. The demand for rights is the sum of the current understanding of
this obligation of the State. It is under contract to its people through the
vote, and promises made on assuming office. A people cheated of equality
in the conception of policy, legislation and implementation, in the discharging
of democratic and constitutional obligations often by an indifferent and often
callous State; cannot but see the relationship with the State, as a contractual
relationship, monitored by transparency and accountability, at every step of
governance.

The obvious truth that governance was more than an evil
necessity, and had a direct, day to day impact on our lives, took a long time
to be understood. The “trust” of a population relieved of the colonial yoke,
took four decades to dissipate. The initial euphoria turned to dismay and
disappointment, when basic constitutional promises and a dream of a better life
eluded many. The assurance that independence itself would constitute freedom
from want - became a naive faith, needing to be dismantled. Progress and
improvements not-withstanding, the marginalised population felt helpless and
unable to impact the system to deliver better.

Government as an institution, while related to
ideology in the larger political context, has an independent working structure
which has continued to stay untouched in spite of transfer of power from a
colonial to an independent state in India. An intellectual who believed in
revolutionary ideals stated quite pragmatically, that no matter what the
ideology, the party once in power had to use a system. Therefore governments
will remain.

Late Prabhash Joshi, founding member of the National
Campaign for People’s Right to Information (NCPRI), India’s pre-eminent
Hindi journalist, with his typical wit, had a story to tell. He recalled the
famous story of the foolish shepherd in Ujjain, who sat on a small hillock and
was transformed into a seer. The curious dug deep and found the throne of
Vikramaditya, the wise king. He continued the story, “there is a small
hillock in Delhi called Raisina Hill. Whoever sits there speaks in the same
voice. If you dig deep, you will find the throne of Wellesley !” The nature
of Governments remain deeply embedded in the procedures, in their influence on
the structure of governance. As an RTI user put it succinctly in a conflict
ridden part of India, the need to know about government functioning over-rides
ideology, because no matter who sits in the seat of power, people will have to
ensure its accountability.

The fault then lay not only in ideology but
the translation of those promises into effective delivery through a machinery
both corrupt and arbitrary in its use of power. It followed that there is a
need to build the relationship between those who govern and those who are
governed. This should be situated in institutionalized and statutory
entitlements enabling the demand for reasoned answers. Transparency and
accountability, replaced benevolence and “good faith”.

The trajectory of this understanding in rural
India is exemplified by stories. People realised the role of governance and
their inertia in a growing understanding of democracy. In the 70’s, most
villagers in Rajasthan disdained to spoil their hands in the businesses of
government spending. The rejoinder always was, “let the money burn, it isn’t
ours.” Dramatically different was Sushila’s statement in an NCPRI press
conference in 1996 in Delhi. In response to their surprise that a semi-literate
woman should demand the right to know, she retorted :

“When I send my son with 10 rupees to the market place and he
comes back; I ask for accounts. The government spends billions of rupees in my
name. Shouldn’t I ask for my accounts ?‘Hamara paisa, hamara hisab’!”

Public enquiry doesn’t follow the structural logic of theory. It
follows its own logic: it works backward, from a recognition born of
experience; from a result to its cause. The reason for the demand for
inquiry is therefore embedded in the hypocrisy and corruption in what people
face -the systems of delivery. The tracing of the condition has led them to
the cause; the fundamental lack of transparency and accountability cutting
across government functioning.

Once convinced that there was a “betrayal” of trust and faith,
the questions turned inward. As compelling as the arguments for “betrayal”
were, was the angst of a people who felt that they had been ignorant of and
therefore were partly to blame. To blame for not questioning and not being
involved with the mechanics of translating constitutional guarantees into acts
of delivery. A long list emerged - schools not functioning , doctors absent,
medicines not available, PDS and anganwadis riddled with corruption, and above
all a system immune to any code of ethics.

This edifice was topped by the ineffectual efforts of the
well-meaning, and the usurping of the public discourse by fundamentalists of
all hues.

It was in this context that a segment of the Indian people
designed the road map, to begin the cleaning of the Aegean Stables with a
demand for transparency and accountability, with the RTI.

In the process of the campaign, some myths were fundamentally
questioned and proven incorrect. The first one was that the illiterate,
semi-literate cannot and do not understand the “higher, loftier”, principles of
governance. The second was that law making cannot be an inclusive process where
many people across sectors can for a while be a part of the democratic process.
The third was that laws cannot be conceptualized by common people. The
fourth, that accountability cannot be demanded of the entire system including
transparency of the pre legislative process, where entitlements are given or
curtailed.

In the seven years of the RTI, many leanings have come to be. Of
particular importance and impact is the plural nature of governance itself. As
for example law making and the passing of legislations themselves; wrapped in
secrecy and lack of accountability. Once laws get passed, and if they are not
in the spirit of Constitutional guarantees; the danger is not only to people’s
lives, but to what is a fundamental principle of democracy itself, the rule of
law. The system claims the implementation and protection of a law, designed to
abrogate undemocratic concentration of power .The law has supposedly been
examined, but in the complex net of processes and procedures, it becomes a
victim of the system as practiced. The contents of a bill placed may be debated
in parliament, but sometimes not, it may or may not be sent to a Standing Committee,
and seldom reaches the people.

A law once passed is a fait accompli, protests and
critique are conveniently termed disrupting the rule of law, and protestors
become the targets of State suspicion and victimization !

As for instance, many laws now being passed by
Parliament are at the inception itself removed from the purview of the RTI . In
any case as the excerpt below will demonstrate, the functioning of Parliament
needs constant study, the modalities understood and citizen pressure to make it
function. While the Constitutional sanctity of Parliament is not questioned,
its delivery should be. All political parties, must take Parliament functioning
seriously. We quote the following as an example :

“In the 2012 Lok Sabha, Question Hour was held
on 11 of 20 days. 49 of 400 starred questions were answered orally. In Rajya
Sabha, Question Hour was held on only 8 of 20 days. Only 43 of 400 starred
questions were answered orally. At the beginning of the session, the government
had listed 25 pending Bills for consideration and passing. Six of these were
passed by both Houses. At the end of the session, 104 Bills remain pending
before Parliament. Productive time in Lok Sabha was 53% of scheduled time i.e.
63 of 120 hours. Productive time in Rajya Sabha was 58% of scheduled time; 58
of 100 hours.

During 2011, Parliament sat for a total of 73
days. In Lok Sabha, 18% of the Bills were passed in less than 5 minutes in
2011. In total, 81 Bills were introduced in Lok Sabha and 51 in Rajya Sabha.
During the year, only four Bills were discussed in Lok Sabha and three in Rajya
Sabha.” (From the Website of Parliamentary Research Service (PRS))

In this context, the protocol for a Pre
Legislative Process, clearly delineating the responsibility of the Executive to
pro-actively disclose draft Bills and Rules in the public domain, and
systemically ensure greater transparency and accountability in the guarded
process of decision making, is a step in the right direction. Recognizing this,
the National Campaign for Peoples’ Right to Information (NCPRI) set itself the
task to begin the examination of the matter. The NCPRI organized a series of
public consultations to support the need for greater transparency and
accountability in decision making, along with discussing the modalities which
can be worked. In addition, the Department of Personnel and Training (DoPT),
Ministry of Personnel and Training, Government of India constituted a task
force to make recommendations for developing enforceable guidelines for the implementation
of Section 4 of the Right to Information Act, 2005 which mandates the
pro-active disclosure of Public Authorities in their processes of decision
making. The Oxford Pro Bono Publico of the University of Oxford assisted the NCPRI,
which was one of the members of the Task Force, by researching on the nature of
transparent and participatory pre-legislative processes currently existing in
eight different countries of the world thereby demonstrated the implementation
of the idea in reality. The proposal included the need for a pre legislative
consultative process not only in the formulation of laws, but also of policy.

It was within this context that the Pre-Legislative Process was
first tabled in the Working Group of Accountability, Transparency and
Governance of the National Advisory Council (NAC) which was mandated to
recommend a protocol to enhance transparency and accountability in the decision
making process of the Executive. The Working Group held a series of public
consultations which were attended by social activists, academics, Government
officials representing a range of Departments, ex judges, lawyers and legal
researchers and members of the media to discuss the need for such a process and
its modalities in detail. After many consultations, and through the support of
important research undertaken by the National Law School, Dwarka, the Working
Group finalized it’s recommendations for the submission to the NAC. The
NAC agreed only to pre legislative consultation on new legislations and rules,
and amendments to older laws and rules. Policies were kept out of the
consultative process.

The NAC, based on its internal deliberations put up as part of
its disclosure a draft note on the Pre-Legislative Process. The disclosure
on its website invited public comments and concrete suggestions on
implementation. Based on the feedback received from the public, the Draft
Pre Legislative Process Protocol was amended and submitted to the NAC for it’s
final approval. The NAC approved the Draft Pre-Legislative Process and
submitted it to the Government as it’s final recommendation in May 2013.

The Pre-Legislative Process (PLP) refers to a framework
consisting of a series of protocols that need to be adhered to by Government
Departments/Ministries to make the process of drafting of Legislations and
rules, more transparent, inclusive and participatory. The PLP rests on the
inherent understanding that people have a right to know, question and suggest
changes to legislative interventions that affect their lives and livelihoods.

For long, centres of power have indulged in acts of centralized
and opaque decision making, by relying on their “expertise” and “specialised
domain knowledge” which apparently grants them the authority and confidence of
taking the most appropriate decision in the greater public good of the economy
and/or the country. The PLP has the potential of breaking notions like this and
reversing paths of knowledge creation, by augmenting “expertise” with
experience.

It looks at unpacking the term policy, currently consisting of
“game changer” ideas, to include learning from the grassroots based on regular
interface between the State and its manifestations, and the people, who are
daily subjected to the irregularities and dysfunctional elements of State
governance. The PLP provides an opportunity for those citizens who experience
the outcomes of decisions taken by authorities far removed from the centres of
power, to contribute towards the framing of new Legislations and Rules and make
the process of policy formulation and decision making more inclusive and
informed.

The following are the key principles that will
guide the drafting of Legislations and Rules (new and amendments to old) by all
Government Departments and Ministries:

a) Pro-active disclosure of Statement of
Objects and Reasons

Every Department is mandated to Pro-actively
disclose a ‘Statement of Objects and Reasons’, in Hindi and English,
describing the need, financial and social implications of bringing in a new
Law/Rule and amending current Laws/Rules. The Statement of Objects and Reasons
is expected to be written in ordinary prose, so as to facilitate non-specialists
to understand and comprehend the information easily.

b) Pro-Active Disclosure of Draft
Rules/Legislations

Subsequent to the above process, the concerned
Department is expected to pro-actively disclose the draft Legislation/Rule
formulated by it, along with an explanatory note describing the legal language
in functional English, for a period of 90 days on it’s website. In
addition, where such a new law/rule and amendment to law/rule directly affects
a specific group in the population, a physical copy of the same will be
provided for in every Panchayat, School, Post Office, Rajiv Gandhi Sahayta
Kendra in the area consisting of affected people. The essence of the nature of
disclosure remains one where authorities pro-actively disseminate key documents
in the public domain in modes that are easily accessible to those situated in
rural areas.

c) Public Consultations

Concerned Departments will be mandated to organize public
consultations to facilitate discussion of the public on the details of the law/amendment
and pro-actively solicit the feedback of affected stakeholders on their
proposed legal interventions

d) Record of Summary

It will be mandatory for the concerned Department to have a
record of a summary of all the feedback that it has received by the public on
the law/rule and prepare a statement of the response that the former devised.
The same shall be produced before the Cabinet for making it’s deliberations
more informed. Subsequently, the record of public feedback received shall be
produced before the concerned Parliamentary Standing Committees studying the
rule/law.

e) Enforcement Mechanism

The PLP will be enforceable through an Executive Order issued by
the Government of India to all Departments and Ministries. In addition, there
shall be in place, a time bound and citizen friendly grievance redress
mechanism in every concerned Department for the redressal of complaints
received by the public in cases of non-compliance of the Government to
guidelines of the Pre Legislative Process. The Department of Law &
Justice will be the nodal authority for ensuring the effective roll out of the
PLP.

Let us take a quick look at the beginnings of a new perception
of governance which is participatory, and mandates that citizens must be
involved in a fashioning and monitoring of democracy, in which the contribution
to legislation and policy assume a new dimension. There is a word of caution to
both government and citizens that they cannot question or override
Constitutional guarantees. They remain sacrosanct. The PLP addresses the
performance and accountability of the political and bureaucratic establishment.
It goes beyond the demand for scrutiny of a single law, but demands it of all
proposed legislations. As late Mohanji, a dalit crusader for the RTI said, “It
makes the vote speak for 5 years”. By implication it makes the bureaucracy also
relevant and accountable.

It is important to re-emphasize that the Pre Legislative Process
makes room for greater transparency and participation, without undermining the
role and scope of the Parliamentary processes, hence the term pre-legislative
process. One can understand the Pre-legislative Process to be an opportunity
for people to re-engage with matters of governance, and functions of the State
in general. This is a welcome change from many of the more recent agendas of “good
governance reforms” that absolve the State from its core duties of
implementation by relying on private sector expertise to replace inefficient
public sector functionalities. The Pre-Legislative Process makes the much
required statement of placing the responsibility of making its decisions
squarely on the State, (in the form of rules and laws) more transparent and
accountable and achieving it through greater citizen involvement and
participation.

We can leave the final word to Plato, who with his peers gave us
the concept of democracy.

“The price of apathy towards public affairs is to be ruled by
evil men”

By: Aruna Roy Rakshita Swamy ; The authors are members
of National Campaign for Peoples’ Right to Information (NCPRI).